FILED: August 25, 2004
IN THE COURT OF APPEALS OF THE STATE OF OREGON
BETH RIEKER and TED RIEKER,
Guardian Ad Litem for Joshua
a minor child,
KAISER FOUNDATION HOSPITALS,
NORTHWEST PERMANENTE, P.C., and
KAISER FOUNDATION HEALTH PLAN OF
Appeal from Circuit Court, Multnomah County.
Robert W. Redding, Judge.
Argued and submitted April 14, 2004.
Kathryn H. Clarke argued the cause for appellants. With her on the briefs was
Richard M. Rogers.
Cecil A. Reniche-Smith argued the cause for respondents. On the brief were Ruth
Casby Rocker, Janet M. Schroer, and Hoffman, Hart & Wagner, LLP.
Before Landau, Presiding Judge, and Armstrong and Brewer, Judges.
In this obstetrical malpractice case, plaintiffs appeal from a judgment for
defendants after a jury verdict. We affirm.
Plaintiffs are the parents of and guardians ad litem for Joshua. During his
birth, Joshua's left shoulder became stuck behind his mother's pubic bone, a circumstance
known in the medical field as "shoulder dystocia." The doctors who delivered Joshua
applied traction to free his shoulder. After he was born, Joshua's left arm was flaccid, and
doctors diagnosed an injury to the brachial plexus nerves, which innervate the arm.
Despite several surgeries, Joshua has permanent severe damage to his arm known as Erb's
palsy. Plaintiffs filed this action, alleging multiple specifications of negligence and
seeking damages for Joshua's injury.
A primary issue at trial was whether Joshua's injury was caused by
defendants' negligence in applying excessive lateral traction to the shoulder and head
during Joshua's birth. The jury heard evidence from a number of experts concerning the
possible causes of injuries to the brachial plexus nerves and Joshua's injury specifically.
On cross-examination, witnesses were asked about and referred to numerous articles in
medical literature. They also referred to articles forming the basis for or supporting their
opinions. The jury reached a verdict for defendants, and plaintiffs appeal, raising
numerous assignments of error. We have considered and reject each assignment. We
write to address a single assignment of error concerning defense counsel's discussion of
certain medical literature during closing argument.
In their fourth assignment of error, plaintiffs contend that the trial court
erred in allowing defense counsel to read several excerpts of medical literature to the jury
in closing argument. In Oregon, medical treatises or articles, like all learned treatises, are
deemed to be hearsay and are not admissible as substantive evidence. (1) Eckleberry v.
Kaiser Foundation, 226 Or 616, 620, 359 P2d 1090 (1961); Scott v. Astoria Railroad Co.,
43 Or 26, 39, 72 P 594 (1903); Travis v. Unruh, 66 Or App 562, 565, 674 P2d 1192, rev
den, 297 Or 82 (1984); Laird C. Kirkpatrick, Oregon Evidence § 803.18, Art VIII-125
(4th ed 2002). Excerpts from medical literature may, however, be offered as the basis of
expert opinion testimony under OEC 703 or may be used to impeach an expert witness if
the expert either relied on the treatise in forming an opinion or acknowledges it as a
recognized authority in the field. Devine v. Southern Pacific Co., 207 Or 261, 275-76,
295 P2d 201 (1956); Kern v. Pullen, 138 Or 222, 231-32, 6 P2d 224 (1931), overruled in
part on other grounds by Fitze v. American-Hawaiian S.S. Co., 167 Or 439, 117 P2d 825
(1941). Here, all the information contained in the excerpted materials had been presented
to the jury through witness cross-examination and discussion of the authors' works;
however, the quoted excerpts themselves had not been read to the jury, with the exception
of those portions specifically noted below.
We first address defendants' contention that the excerpted materials were
not hearsay because they were not offered as substantive evidence of their contents but,
rather, to show the evolution of medical thought on the likely causes of brachial plexus
injuries in shoulder dystocia. We do not perceive the significance of that distinction for
present purposes. In any event, whether or not the challenged materials could have been
admitted as substantive evidence if timely offered is beside the point. Even if the
materials had been timely offered and admitted solely as foundations for expert opinion
testimony or to impeach such testimony, the particular excerpts at issue were not included
in the evidentiary record. The first question on appeal thus is whether the trial court
abused its discretion in allowing defendants' counsel to read them to the jury in closing
argument. See R.J. Frank Realty, Inc., v. Heuvel, 284 Or 301, 306, 586 P2d 1123 (1978)
(rulings concerning jury argument are reviewed for abuse of discretion). As explained
below, we conclude that the court erred.
The regulation of jury argument is left largely to the discretion of the trial
court. Id. Jury argument properly may include reference to matters that are within the
scope of the issues and evidence, but evidence outside the record may not be suggested to
the jury by any means. OEC 103(3). A court abuses its discretion by allowing jury
argument regarding facts not in evidence. Atlas Copco Industrial v. Karn Repair Service,
172 Or App 317, 323-25, 18 P3d 1102, rev den, 332 Or 316 (2001). (2) The "facts" that
the trial court allowed defense counsel to argue were the quoted excerpts from medical
literature that supported defendants' theory as to the cause of Joshua's injuries and were
consistent with the opinions expressed by defendants' witnesses. However, the
challenged excerpts had not been received in evidence for any purpose. We conclude that
the trial court abused its discretion in permitting defense counsel to refer to them in
Error is not reversible, however, unless the losing party demonstrates that
the error substantially affected his or her rights. See ORS 19.415(2); Jett v. Ford Motor
Co., 335 Or 493, 497, 72 P3d 71 (2003); Shoup v. Wal-Mart Stores, Inc., 335 Or 164,
173, 61 P3d 928 (2003) ("The possibility that an error might have resulted in a different
jury verdict is insufficient under [ORS 19.415(2)]. Instead, the court must be able to
conclude, from the record, that the error 'substantially affect[ed]' the right of the losing
party."). Defendants assert that any error in permitting defense counsel to quote the
challenged materials did not substantially affect plaintiffs' rights because those materials
were cumulative of evidence that had been presented to the jury.
We have examined the record with care, and focus on the five excerpts for
which plaintiffs preserved objections. First, defense counsel read from a 1997 article by
"We identified four cases that occurred in the absence of shoulder dystocia
and four cases that occurred in the posterior arm of infants with anterior
shoulder dystocia. These data further support the notion that the etiology of
permanent brachial plexus palsy associated with birth may not be related to
Although that particular excerpt was not introduced in evidence, several witnesses
mentioned the author and discussed the substance of his opinions on the subject of the
excerpt, and a witness identified the article as authoritative and reliable. A witness also
discussed the substance of the excerpt. We conclude that the reading of the excerpt
during closing argument did not substantially affect plaintiffs' rights.
Second, defense counsel also read an excerpt from an October 1997
"Practice Patterns" publication of the American College of Obstetricians and
"There is evidence that injuries might and do occur despite application of
appropriate obstetrical maneuvers. Injuries are a common outcome
associated with shoulder dystocia and may occur despite use of appropriate
standard obstetrical maneuvers. Brachial plexus injuries and others,
fracture of the humerus, fracture of the clavicle, are the most commonly
reported injuries associated with shoulder dystocia."
(Emphasis added.) Several witnesses discussed the October 1997 "Practice Patterns"
publication in their trial testimony. Only the emphasized sentence of the quoted excerpt
was not included in the evidentiary record, and it does not bear on the disputed issue of
causation. We conclude that defense counsel's reference to it in closing argument did not
substantially affect plaintiffs' rights.
Third, defense counsel discussed an article authored by Dr. Gherman,
which was not read at trial:
"Another article by Dr. Gherman before the one that we've been
talking aboutcame out--and you heard about this--March of 1998:
"'Brachial plexus injury has often been assumed to be the
result of excessive lateral head traction–head flexion applied during
delivery, thereby selectively stretching the nerve root. This causes
transient dysfunction with restoration of function expected in most
cases. There has been a general tendency to presume that most,
quote, no-shoulder brachial plexus injuries represent under-reporting
of shoulder dystocia. Previously reported serious brachial plexus
palsies, however, * * * have consistent findings suggesting
"And then it picks up here:
"'More than half, 633 of 100'--excuse me--'of 1149, 51--55.1
[percent] of the nerve injuries in ten recent reports occurred with a
reported shoulder dystocia. Our data, taken together with the
preceding reports, provides several lines of evidence to show that not
all Erb's palsies are traction related, rather an in-uterine insult,
perhaps, combined with a susceptibility to pressure or traction may
Fourth, counsel quoted from a June 1998 Gherman article that also was not included in
the evidentiary record:
"'The occurrence of brachial plexus injury, therefore, should not necessarily
be equated with iatriogenic'--mean[ing] doctor-caused-- 'birth injury.'"
Although the foregoing excerpts were not included in the evidentiary record, expert
witnesses made several references to Gherman, his articles, and his opinions on the
causes of brachial plexus injuries. (3) Dr. Edelberg, one of plaintiffs' experts, was
cross-examined concerning Gherman's views. He testified that he disagreed with them.
Dr. Clark, one of defendants' experts, testified that Gherman's research supported his
opinion that more than 50 percent of brachial plexus injuries are due to causes other than
obstetrical maneuvers. In his cross-examination of Dr. Sandmire, plaintiffs' counsel
allowed Sandmire to refer to the findings of doctors Ousounian and Gherman, as well as
to those of Dr. Gonik.
Fifth, defense counsel quoted from a 1998 article by Dr. Gonik, the text of
which was not included in the record:
"[W]e have determined that the maternal expulsive forces are from four to
nine times greater than the forces of traction that are used in various settings
However, several witnesses mentioned Gonik and discussed the substance of his studies,
including the quoted article, at trial.
We conclude that, although the trial court erred by allowing defense counsel
in closing argument to read written materials to the jury that were not included in the
evidentiary record, in light of the fact that the record included the substance of those
materials, that error did not substantially affect plaintiffs' rights. We have considered and
reject without discussion plaintiffs' remaining assignments of error.
1. The official legislative commentary to OEC 803, hearsay exceptions, provides,
"The Legislative Assembly did not adopt the federal hearsay exception for learned
treatises which appears as subsection (18) of Fed R Evid 803. It wishes to retain
the Oregon practice of using treatises in the cross-examination of expert
witnesses. Learned treatises should not be admitted as substantive evidence as
they are likely to be misunderstood and misapplied in the absence of expert
assistance and supervision."
Oregon Evidence Code, Official Commentary to Rule 803 (Butterworth's 1981).
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2. OEC 103(3) provides:
"In jury cases, proceedings shall be conducted, to the extent practicable, so
as to prevent inadmissible evidence from being suggested to the jury by any
means, such as making statements or offers of proof or asking questions in the
hearing of the jury."
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3. For example, the jury had been read another excerpt from an article authored by
"In summary these data suggest that brachial plexus injury may occur during any
stage of shoulder dystocia. Such injuries may also be due to other ante-natal or
intra-partum events independent of the maneuvers used during delivery."
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